Since 1973, when significant constitutional changes in the state court system took effect, 16 of the 23 S.C. Supreme Court justices over the period were ex-lawmakers, The Nerve found in a review of judicial and legislative records.
Starting toward the end of last year, however, there have been no former legislators on the state’s top court for the first time in the court system’s modern history.
But that could quickly change.
On Monday, the state Judicial Merit Selection Commission (JMSC), which nominates judicial candidates for elections in the Legislature, is scheduled to screen four candidates for the Supreme Court seat currently held by John Few, who is seeking reelection for another 10-year term.
It’s the first contested election involving a sitting Supreme Court justice since 2014.
One of the candidates is former longtime House member Jay Lucas, a Republican who was elected by his colleagues in December 2014 as the House speaker – the most powerful position in the 124-member chamber – and served in that role until his retirement in 2022.
If the JMSC qualifies Lucas and if lawmakers elect him next year, he would be the first ex-lawmaker to serve on the state’s highest court since 1988 with the lowest level of prior judicial experience, The Nerve’s review found.
His only judicial experience was a short stint (1995-1996) as a Hartsville city judge, according to his legislative biography,
Only Jean Toal, a former Democratic House member for 13 years, had less judicial experience – none – when she sought and won a Supreme Court seat nearly 38 years ago, going straight from the House to the top court, as allowed then by state law.
The Nerve repeatedly has reported about the General Assembly's longstanding practice of electing ex-lawmakers to court seats, as well as relatives of or others with ties to sitting legislators.
The Nerve’s latest review found that from 1973 to 2000, all five members of the Supreme Court each year were ex-lawmakers – mostly former House members. Of the 16 justices since 1973 with prior legislative experience, 10 served as chief justices: The first one was Joseph Rodney Moss; the last one was Donald Beatty, who retired last year, legislative and judicial records show.
If elected to the Supreme Court, Lucas would be the first ex-House speaker to do so since the 1967 election of Bruce Littlejohn, who was elected as chief justice in 1984, according to legislative records.
In July 2022 – about two months after he ended his 23-plus-year tenure in the House – Lucas was named senior vice president for government affairs at Prisma Health, the state’s largest healthcare organization, according to its website. He also has been a longtime partner in the Pee Dee law firm now known as Lucas, White & Mitchell, according to the firm’s website.
Lucas didn’t respond to The Nerve’s written requests this week for comment.
Few served as a circuit court judge for nearly 10 years before becoming chief judge of the S.C. Court of Appeals – the state’s second highest court – in 2010, a position he held until his election to the Supreme Court in February 2016. His current salary is $233,606, according to the Judicial Department’s salary database.
Two other current appellate judges – Court of Appeals Judge Blake Hewitt and Ralph King “Tripp” Anderson, who is longtime chief judge of the state Administrative Law Court (ALC) – also are candidates for Few’s seat. Anderson was elected to the ALC in 1994 and has been its chief judge since 2009; Hewitt was elected to the Court of Appeals in 2019.
Unlike Lucas, the other three candidates never served in the Legislature.
Lucas is 68 years old, while Few is 62. Hewitt and Anderson are 47 and 66 years old, respectively. Under state law, the mandatory retirement age for full-time judges is 72, which means Lucas and Anderson would not serve a good portion of the full 10-year term if either of them is elected. If Few is reelected, he could serve 9.5 years of the 10 years of his next term under the mandatory retirement law. Justices over the years routinely have been elected to fill unexpired terms.
The state Constitution mandates only that a Supreme Court candidate be a U.S. and S.C. citizen with a minimum of five years of residency in the state before election, at least 32 years old, and a licensed attorney for at least eight years. State law tasks the JMSC with considering nine criteria for judgeships, including experience as an attorney or a judge.
The screening hearings for the four candidates are scheduled to begin Monday at 10 a.m. in Room 105 of the Gressette Building on the State House grounds. Under a change in state law that took effect this year, the hearings must be livestreamed.
They are among a total of 40 candidates scheduled to be screened next Monday through Thursday for a collective 26 Supreme Court, circuit, master-in-equity, family and Administrative Law Court seats, as well as six “active retired” circuit or family court positions, according to a JMSC release. Another round of screening hearings was initially reserved for the first week of December, with elections in the Legislature tentatively set for next March 4.
South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. The South Carolina Policy Council – The Nerve’s parent organization – has recommended that the JMSC be abolished and that the governor appoint judges with Senate confirmation, similar to the federal model.
Ticket to court seats
In 1973, the state court system became a “unified judicial system” following a constitutional amendment passed by S.C. voters in 1972, which, among other things, defined the courts that would be part of the new system and vested the overall administrative authority of the courts with the chief justice.
Voters in 1996 approved another constitutional amendment requiring that the Legislature elect only those judicial candidates nominated by the JMSC. But contested elections involving sitting S.C. judges are uncommon.
At the Supreme Court level, then-Associate Justice Toal successfully fended off a challenge from then-Circuit Court Judge Tom Ervin in 1996. In 2014, she won reelection as chief justice against then-fellow justice Costa Pleicones.
Toal was serving in the House and had no prior judicial experience when she was first elected in 1988 to the Supreme Court, becoming the first woman on the state’s top court. At the time, she had 20 years’ experience as a lawyer, including “a balance of plaintiff and defense work, criminal trial work, and complex constitutional litigation,” according to her judicial biography.
Toal was the only ex-legislator justice in The Nerve’s review with no prior judicial experience before being elected to the Supreme Court. All but one of the 15 other justices who were former lawmakers served initially as circuit court judges upon leaving the Legislature, records show.
Under current state law, lawmakers who leave the General Assembly must wait at least one year before being elected to a judgeship. That law didn’t exist when Toal first joined the Supreme Court and for her predecessors on the court.
Toal was elected by lawmakers as chief justice in 1999 and began serving in that role in 2000. She was elected to her first full 10-year term in 2004 and re-elected to another 10-year term in 2014.
Toal retired the following year and was appointed in 2017 and reappointed in 2019 by then-Chief Justice Donald Beatty, a former Democratic House member who first was elected to the high court in 2007, as a special part-time judge to oversee the state’s asbestos litigation. Critics have accused her of favoring plaintiffs in those cases.
In its latest annual “Judicial Hellholes” report, the American Tort Reform Foundation ranked South Carolina No. 3 in the nation, contending that since 2020 when the state first landed on its list, Toal has “become more extreme, seemingly emboldened by the hands-off approach of the South Carolina appellate courts and some influential lawyer-legislators.”
The Nerve repeatedly has pointed out the influence of lawyer-lawmakers on the judiciary as well as on legislation, including efforts to kill liquor-liability reforms, which ultimately passed this year. The Policy Council – The Nerve’s parent organization – advocated for the reforms.
Long legislative pipeline
Historically, ex-lawmakers routinely were elected to the Supreme Court. The Nerve’s latest review found that from 1973 to 2000, all 15 justices who served during that period were former legislators.
In 2000 when Toal began serving as the chief justice, Pleicones, a former circuit court judge, was the first non-legislator since 1973 to join the top court. In 2015, Pleicones became the first non-lawmaker in the court’s modern era to be elected as chief justice.
The number of ex-legislators on the Supreme Court dropped to three with the 2008 election of John Kittredge and to one in 2016 when Pleicones took over as the chief justice and Few was elected, legislative and judicial records show.
After Beatty’s retirement in July 2024 as the chief justice, Kittredge became his successor – the second non-lawmaker since 1973 to do so.
And with last year’s election of Associate Justice Letitia Verdin, who like Kittredge, is a former family, circuit and Court of Appeals judge, the Supreme Court for the first time since at least 1973 had no members with prior legislative experience, The Nerve’s review found.
Besides Few, the other current associate justices are George James, a former circuit court judge who was first elected to the Supreme Court in 2017 and re-elected in 2020; and Gary Hill, a former circuit court and Court of Appeals judge who was elected to the top court in 2023.
It remains to be seen whether the Supreme Court will remain free of ex-lawmakers.
---------------------------
Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or
